William Shakespeare would have liked Justice Stephen Breyer. At oral argument, Breyer does not just hurl tendentious questions at hapless counsel. Like Hamlet, he likes to hear himself think.
The most significant moment in Wednesday's bizarre oral argument in Snyder v. Phelps, the Westboro Baptist Church funeral-picketing case, may be this question from Breyer to Sean Summers, the lawyer representing grieving father Albert Snyder. Snyder's claim was that picketing his son Matthew's funeral (even at a distance), and publishing an "epic" ridiculing Matthew's religious upbringing (even though on a website not sent to the family) constituted "intentional infliction of emotional distress." Straightforward application of First Amendment precedent suggests that the claim can't succeed. But Breyer seemed willing to think aloud about whether new precedent is needed:
So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.
Breyer went on to speculate about a radical new rule for such cases: allow compensatory damages--intended to repair actual harm done (like the effect on Albert Snyder's health) by the speech--but not punitive damages, which are designed to deter others from doing the same thing.
Note long before, in an interview on Good Morning America, George Stephanopoulos asked Breyer whether the nature of free speech has changed in a world where threatened Koran burning by obscure publicity-hounds in Florida could spark riots in Kabul. Breyer responded:
And you can say -- with the Internet, you can say this. You can't shout fire in a crowded theater. Holmes said [the First Amendment] doesn't mean you can shout 'fire' in a crowded theater. Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? It will be answered over time in a series of cases which force people to think carefully.
By and large, the Rehnquist Court solidified the strong pro-speech jurisprudence of the Warren and Burger Courts. In cases like Ashcroft v. Free Speech Coalition and Reno v. ACLU, the Court's majority applied those principles squarely to what Justice Stevens called "the vast democratic fora of the Internet." Government was to keep its hands off regulating speech on the basis of its subject matter or viewpoint. That extended even to high-tech computer-graphic depictions of child pornography; the Roberts Court last term extended First Amendment protection even to videos of animal abuse and cruelty.